Boyle v. Christensen

This opinion is subject to revision before final
publication in the Pacific Reporter
2011 UT 20
IN THE
SUPREME COURT OF THE STATE OF U TAH
____________
J OHN BOYLE & N ORRINE BOYLE ,
Plaintiffs and Appellants,
v.
KERRY CHRISTENSEN ,
Defendant and Appellee.
____________
No. 20090822
Filed April 15, 2011
____________
On Certiorari to the Utah Court of Appeals
____________
Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 050912506
____________
Attorneys:
Roger P. Christensen, Karra J. Porter, Scot A. Boyd,
Salt Lake City, for plaintiffs
Kristin A. VanOrman, Jeremy G. Knight, Pamela E. Beatse,
Salt Lake City, for defendant
____________
CHIEF JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 	Mr. Boyle was hit by a truck and injured while walking in
a crosswalk. Mr. Christensen, the driver, admitted liability, but the

BOYLE v. C HRISTENSEN
Opinion of the Court
case went to trial on damages. Not satisfied with the jury award,
Mr. Boyle appealed, and the court of appeals affirmed the district
court decision in all respects. Mr. Boyle sought certiorari review
regarding three issues. He argues that (1) the district court pro-
vided inadequate voir dire questioning, (2) opposing counsel’s
improper reference to the “McDonald’s coffee case”1 in closing
argument warrants reversal, and (3) Mrs. Boyle’s related loss of
consortium claim was improperly dismissed. We hold that the
court of appeals was correct in deciding that Mr. Boyle did not
properly preserve the voir dire issue for appeal, because he neither
objected to the district court’s voir dire questions nor asked for
additional questions when he could have done so. However, the
court of appeals incorrectly affirmed on the other two issues. We
conclude that the reference to the McDonald’s coffee case was
irrelevant and improper. We reverse and remand for a new trial be-
cause, under the circumstances, the reference had a reasonable
likelihood of influencing the jury verdict to Mr. Boyle’s detriment.
We also find that the dismissal of Mrs. Boyle’s loss of consortium
claim was improper, because there were disputed issues of fact (or
at least disputed reasonable inferences therefrom) as to whether
there was a qualifying injury as defined by statute.
BACKGROUND
¶2 	Appellants Mr. and Mrs. Boyle are husband and wife. Mr.
Boyle was hit by a truck while walking in a crosswalk in a grocery
store parking lot. Mr. Boyle sustained injuries that led to back
surgery. For months he could not work and therefore lost his job.
He now suffers from chronic pain that has multiple consequences,
including an inability to sleep through the night, sleep in a bed,
drive for extended periods, work an eight-hour day, or perform
certain work-related tasks such as lifting two buckets of golf balls at
once. He is now working for a new company in the same general
industry he worked for before and for the golf shop where he
worked before the injury, but with modified income potential and
1 The case referenced here is a New Mexico lawsuit, Liebeck v.
McDonald’s Rests., P.T.S., Inc., No. CV-93-02419, 1995 WL 360309
(N.M. 	Dist. 	Ct. 	Aug. 	18, 	1994), 	which 	is 	referred 	to 	as 	the
“McDonald’s coffee case” throughout this opinion.
2

Cite as: 2011 UT 20
Opinion of the Court
reduced abilities (mentally because of the lack of sleep and constant
pain, and physically because he is unable to lift buckets of golf
balls, drive for extended periods, or work a full eight-hour shift).
He was once a professional golfer, and the back injury has also
affected his golf game.
¶3 	Mr. 	Boyle 	brought 	a 	negligence 	action 	against 	Mr.
Christensen, who admitted liability. The case went to trial on the
question of appropriate damages. Before trial, Mrs. Boyle also
brought a claim for loss of consortium, which the district court
dismissed. The grounds for dismissal were that Mrs. Boyle could
not show that 	Mr. Boyle had suffered a qualifying injury under
Utah Code section 30-2-11(1).
¶4 	In the jury selection process, both parties submitted voir
dire questions. The judge combined and revised the questions,
omitting some of Mr. Boyle’s questions that addressed jurors’
views on tort reform issues. It is unclear from the record (and
disputed in the briefs before this court) whether the district court
provided copies of its own voir dire questions to the parties before
it began questioning the potential jurors. During the jury selection
process, Mr. Boyle’s counsel neither objected to the omission of any
questions nor asked for additional questions, even when given the
opportunity to do so. Mr. Boyle does not dispute that no such
attempt was made either before the jury or in the judge’s chambers.
¶5 	During 	closing 	argument, 	Mr. 	Christensen’s 	counsel
referred for the first time in trial to the McDonald’s coffee case. Mr.
Christensen’s 	counsel 	incorrectly 	represented 	that 	both 	the
McDonald’s coffee case and the case at hand involved an effort at a
per diem analysis in determining damages. Mr. Boyle’s counsel
immediately objected that the case was not in evidence and was
prejudicial; his objection was noted but overruled. In the limited
time allowed for Mr. Boyle’s response, his counsel tried to mitigate
the impact of this statement by explaining that the judge in the
McDonald’s coffee case reduced the ultimate verdict. Mr. Boyle’s
counsel did not explain how the facts of the case had been
misrepresented.
¶6 	The jury verdict was for a total of $62,500. The jury
3

BOYLE v. C HRISTENSEN
Opinion of the Court
awarded $29,700 for past economic damages, $5,000 for future
economic damages, and $27,800 for noneconomic (or pain and
suffering) damages. Mr. Boyle had asked for $56,934 in past
economic damages, $31,790 in future economic damages, and
$370,000 for pain and suffering— a total of $458,724.
¶7 	Mr. and Mrs. Boyle appealed, and the court of appeals af-
firmed. Boyle v. Christensen, 2009 UT App 241, 219 P.3d 58. The
Boyles then petitioned this court for certiorari review. We have
jurisdiction under Utah Code section 78A-3-102(3)(a) (Supp. 2010).
STANDARD OF REVIEW
¶8 	“On certiorari, we review the court of appeals’ decision
for correctness.” Magana v. Dave Roth Constr., 2009 UT 45, ¶ 19, 215
P.3d 143.
¶9 	The court of appeals outlined the proper standards of
review for each issue in this case. For challenges to the trial court’s
management of jury voir dire, an abuse of discretion standard was
appropriate, but “alleged deficiencies in voir dire must [have been]
brought to the district court’s attention in order to be preserved for
appeal.” Boyle v. Christensen, 2009 UT App 241, ¶ 7, 219 P.3d 58.
Challenges regarding “‘whether remarks made during closing
argument improperly influenced the verdict’” also are reviewed
under an abuse of discretion standard. Id. ¶ 8 (quoting Green v.
Louder, 2001 UT 62, ¶ 35, 29 P.3d 638). Finally, “a trial court’s ruling
on a motion to dismiss [is reviewed] for correctness, according no
deference to the trial court.” Id. ¶ 9 (internal quotation marks
omitted); J.S. v. P.K. (In re Adoption of I.K.), 2009 UT 70, ¶ 7, 220 P.3d
464.
ANALYSIS
¶10 	First, Mr. Boyle claims that the court of appeals erred in
holding he did not preserve the jury voir dire issue for appeal.
Furthermore, he argues that the district court abused its discretion
in eliminating his proposed tort reform questions. We need not
reach the latter point because we affirm the court of appeals on the
former. 	Second, 	Mr. 	Boyle 	argues 	that 	the 	reference 	to 	the
4

Cite as: 2011 UT 20
Opinion of the Court
McDonald’s coffee case in closing argument was improper and
warranted reversal. We agree that, under the circumstances in this
case, the improper reference had a reasonable probability of
affecting the outcome to Mr. Boyle’s detriment, thus requiring a
new trial. Third, Mrs. Boyle argues that her loss of consortium
claim was improperly dismissed. Because there were issues of fact
(or at least issues of the reasonable inferences properly to be drawn
therefrom) as to whether Mr. Boyle had suffered a qualifying
injury, we agree that Mrs. Boyle’s claim was erroneously dismissed.
I. MR. BOYLE FAILED TO PRESERVE THE
VOIR DIRE ISSUE FOR APPEAL
¶11 	The court of appeals correctly concluded that Mr. Boyle
failed to preserve for appeal the claim that voir dire questioning
was inadequate. The claim was not preserved because Mr. Boyle’s
counsel 	never 	objected 	that 	the 	district 	court’s 	questions
insufficiently addressed tort reform, nor did he seek additional
questioning during the voir dire process before affirmatively
approving the jury selected. In approving the composition of the
jury, he was implicitly approving the process by which the jury had
been selected. We have stated that
[i]f a party is dissatisfied with the thoroughness of voir
dire . . . that party may . . . propose additional
questions, or ask the court for further questioning. But
where a party affirmatively expresses to the trial court
his assent to the composition of the jury, that party
cannot challenge the composition of the jury on appeal.
State v. Lee, 2006 UT 5, ¶ 18, 128 P.3d 1179 (citation omitted). Using
the same logic, Mr. Boyle cannot approve the composition of the
jury and later challenge the process used to select it unless he has
registered a relevant objection.
¶12 	In spite of this rule, Mr. Boyle argues that (1) the tort
reform questions that he submitted to the judge before voir dire
should be sufficient alone to preserve the issue on appeal, and (2)
there was no opportunity to object or request additional questions
during voir dire. We disagree.
5

BOYLE v. C HRISTENSEN
Opinion of the Court
¶13 	In arguing that his submitted tort reform questions
should be sufficient to preserve the appeal, Mr. Boyle relies on
Utah Rule of Civil Procedure 46:
Formal exceptions to rulings or orders of the court are
unnecessary. It is sufficient that a party, at the time the
ruling or order of the court is made or sought, makes
known to the court the action which he desires the
court to take or his objection to the action of the court
and his grounds therefor; and, if a party has no
opportunity to object to a ruling or order at the time it
is made, the absence of an objection does not thereafter
prejudice him.
Relying on this rule, Mr. Boyle claims he was not required to object
to the district court’s voir dire questions because they constituted a
“ruling or order,” and Mr. Boyle had already submitted differently
formulated questions before the district court decided on its own
list.
¶14 	The problem with this reasoning is that the district court’s
list of voir dire questions did not constitute a “ruling or order” as
those terms are used in rule 46. Voir dire questions cannot be fully
defined until after the voir dire process is completed. Until that
point, 	the 	district 	court 	may 	agree 	to 	additional 	or 	revised
questioning. Here, the district court accepted questions from both
parties, and then constructed its own questions in an effort to
accommodate 	both 	sides. 	The 	district 	court’s 	new 	questions
presented a new issue to the parties: did the revised questions
sufficiently address both parties’ concerns and legal entitlements?
If Mr. Boyle believed the tort reform issues had been inadequately
addressed 	in 	the 	district 	court’s 	new 	questions, 	he 	had 	an
obligation to notify the district court so it could examine the issue.
As we have stated:
In order to preserve an issue for appeal[,] the issue
must be presented to the trial court in such a way that
the trial court has an opportunity to rule on that issue.
This requirement puts the trial judge on notice of the
asserted error and allows for correction at that time in
6

Cite as: 2011 UT 20
Opinion of the Court
the course of the proceeding. For a trial court to be
afforded an opportunity to correct the error (1) the
issue must be raised in a timely fashion[,] (2) the issue
must be specifically raised[,] and (3) the challenging
party must introduce supporting evidence or relevant
legal authority. Issues that are not raised at trial are
usually deemed waived.
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801
(alterations 	in 	original) 	(citations 	omitted) 	(internal 	quotation
marks omitted); see also U TAH R. A PP . P. 24(a)(5)(A) (requiring an
appellant’s brief to contain a “citation to the record showing that
the issue was preserved in the trial court”). Where parties fail to
object to inadequate questioning in voir dire, the district court
cannot 	be 	expected 	to 	second-guess 	that 	silence. 	It 	is 	not
unreasonable to require attorneys to voice concerns they have
regarding voir dire questions at the time of voir dire so that the
district court can immediately address the issues, rather than allow
them to remain silent and appeal later. This approach conserves
judicial resources and promotes speedy justice for all concerned.2
¶15 	Mr. Boyle claims that even were he required to make
some objection, he was given no reasonable opportunity to do so.
After reviewing the transcript of the jury selection in this case, we
disagree. 	We 	find 	there 	were 	multiple 	opportunities 	for 	an
objection or request for additional questioning. If Mr. Boyle had an
advance copy of the district court’s revised questions (a fact
disputed by the parties and unclear from the record), he could have
voiced his concern when the district court judge asked both parties
whether they were ready to proceed. However, even if he did not
receive the questions in advance, he heard the questions posed to
2 Mr. Boyle has argued that Bee v. Anheuser-Busch, Inc. supports his
position because in that case the attorney did not place an objection
on the record regarding the denial of his tort reform questions—the
attorney merely objected to the judge in a sidebar. 2009 UT App 35,
¶ 4, 204 P.3d 204. This case is distinguishable in that Mr. Boyle’s
counsel gave no indication of his objection during voir dire.
However, we also clarify that an objection must be made on the
record to be preserved for appeal.
7

BOYLE v. C HRISTENSEN
Opinion of the Court
each juror. When asked whether he had challenges for cause, Mr.
Boyle’s counsel could have registered his concern. Indeed, when
opposing counsel was asked whether she had additional challenges
for cause, she said she wanted to further question one of the jurors
and was allowed to do so. Even when Mr. Boyle’s counsel was
asked whether he had further questions of that same juror, he did
not raise his concern. Furthermore, both counsel met with the
district court judge in chambers during a recess as soon as the
judge had finished his original questioning of the jurors and before
asking the attorneys whether they had challenges for cause.
Presumably, if Mr. Boyle’s counsel had concerns about making
legal arguments to the judge before the jury, he could have
registered his concerns with the judge in this conference, and, if the
judge were unrelenting, he could have placed his objection on the
record upon return to the courtroom.3
¶16 	Mr. Boyle has argued that if he did not preserve the voir
dire issue for appeal, we should apply a plain error review. We will
not do so because, “where the appellant affirmatively proclaims the
acceptability of the jury in the trial court,” the doctrine of invited
error applies and denies appellate review. Lee, 2006 UT 5, ¶¶ 16–20;
see also State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111 (noting that
parties invite error where they affirmatively represent to the court
that they have no objection). When Mr. Boyle’s counsel made no
objections regarding inadequate questioning and then affirmatively
passed the jury for cause 4 stating that he had no objection to
3 Mr. Boyle argues that “by penalizing Mr. Boyle for passing the
jury ‘for cause,’ the court of appeals is conflating the peremptory
and for-cause phases of jury selection. . . . [T]ort reform questions are
pertinent to the exercise of peremptory challenges.” This argument
misses the point. The problem is that Mr. Boyle never registered an
objection at any point in the proceedings, even when he had
reasonable opportunities to do so. If he had wanted to preserve the
issue for appeal, he should not have approved the jury without
registering an objection at some point during the jury selection
process.
4 When Mr. Boyle’s counsel was asked if he passed the jury for
cause, he stated, “Yes, to the extent we’ve questioned the jurors.”
This does not qualify as registering an objection where counsel never
8

Cite as: 2011 UT 20
Opinion of the Court
discharging the remaining panel members, this qualified as an
affirmative representation that there were no objections based on
inadequate questioning in voir dire. Because any error by the
district court regarding inadequate questioning was therefore
invited error, we refrain from a plain error analysis and affirm the
court of appeals on this issue.
II. DEFENDANT’S COUNSEL’S ALLUSION TO THE
MCDONALD’S COFFEE CASE DURING
CLOSING ARGUMENT WAS IMPROPER
AND WARRANTS REVERSAL
¶17 	Mr. Boyle has argued that opposing counsel’s reference to
the McDonald’s coffee case during closing arguments was im-
proper and warrants reversal. Where counsel makes improper
remarks during closing arguments, we will reverse only if “absent
the improper argument, there was a reasonable likelihood of an
outcome more favorable to the” complaining party. State v. Dibello,
780 P.2d 1221, 1225 (Utah 1989). Granting a new trial is an extreme
remedy that we do not provide lightly, but, for the reasons de-
scribed below, we agree with Mr. Boyle that the reference here was
both improper and reasonably likely to prejudice the jury, thus
warranting reversal.
A. The Reference to the McDonald’s Coffee Case Was Improper
¶18 	We grant both sides “considerable latitude in their closing
arguments. . . . to fully discuss from their perspective the evidence
and all inferences and deductions it supports.” Id. However, that
“latitude does not extend to counsel calling the jury’s attention to
material that the jury would not be justified in considering in its
verdict.” State v. Alonzo, 973 P.2d 975, 981 (Utah 1998). For example,
comments meant to inflame passion or prejudice in the jury would
be improper because they divert the jury from its duty to base its
verdict on the evidence presented. See, e.g., State v. Alonzo, 932 P.2d
606, 615 (Utah Ct. App. 1997) (explaining that the trial court may
have properly limited counsel’s reference to the Rodney King
attempted to ask for additional questions after being presented with
or hearing the district court’s revised questions.
9

BOYLE v. C HRISTENSEN
Opinion of the Court
incident if it “were an attempt to inflame the jury or suggest that
because the Rodney King officers were found guilty, the officers in
this case were also guilty of using excessive force”), aff’d, 973 P.2d
975.
¶19 	Here, during closing argument, Mr. Christensen’s counsel
referred to Mr. Boyle’s requested pain and suffering damages and
said the following:
Ladies and gentlemen, they want a lot of money for
this. A lot of money. What’s been written on the board
is called a per diem analysis. . . . How many days has it
been since the accident? How many days for the rest
of his life. And how much per day is that worth? That’s
what’s been done here. That’s how we get verdicts like
in the McDonald’s case with a cup of coffee.
Mr. Boyle’s counsel immediately objected that the reference to this
case was “prejudicial and . . . not in evidence.” His objection was
noted but overruled.
¶20 	Before we analyze this statement, it may be useful to
explain the cultural context of the McDonald’s coffee case, more
formally known as Liebeck v. McDonald’s Restaurants, P.T.S., Inc.5
Few cases have ever achieved as much notoriety among the general
public of this country as the McDonald’s coffee case, fueled by its
wide-ranging and repeated publicity in national and local news
media. It has been mocked in extremely popular entertainment
television, including The Tonight Show, The Late Show, and Seinfeld.
It 	has 	been 	debated 	on 	talk 	shows, 	parodied 	in 	television
commercials, mentioned in congressional debates, and is firmly
lodged in the public consciousness. Mark B. Greenlee, Kramer v.
Java World: Images, Issues and Idols in the Debate over Tort Reform, 26
C AP . U. L. R EV . 701, 702–03 (1997). “What made the headlines and
what is most commonly recalled by the general populace about the
. . . case is the size of the verdict and the source of the injury—$2.9
million for spilled coffee.” Id. at 718. In U.S. popular culture, the
case has come to symbolize greedy plaintiffs and lawyers who file
5 See supra note 1.
10

Cite as: 2011 UT 20
Opinion of the Court
frivolous lawsuits and win hugely excessive sums in a broken legal
system. See, e.g., Peter G. Angelos, Commentary, 1996 Spring
Commencement Speech, 27 U. BALT. L.F. 19, 21 (1996); Michael
McCann, William Haltom & Anne Bloom, Java Jive: Genealogy of a
Juridical Icon, 56 U. MIAMI L. R EV . 113, 115 (2001).
¶21 	Although the public view of the case is understandable
when limited to a superficial view of its facts, a deeper look at the
details 	and 	issues 	in 	the 	case 	may 	dramatically 	alter 	one’s
perspective. Among the many relevant facts generally missing from
the public consciousness are the following:
(1) The temperature of the spilled coffee was so
hot—180 to 190 degrees—that within seconds it caused
third-degree burns that extended through the skin to
the fat, muscle, or bone on Ms. Liebeck’s thighs,
buttocks, and groin area. She was hospitalized for
eight days, underwent skin grafts, was disabled for
two 	years 	following 	the 	accident, 	and 	was
permanently disfigured with scars on over 16 percent
of her body. 	See Greenlee, supra, at 718–19; see also
Angelos, supra, at 21; Brian Timothy Beasley, North
Carolina’s New Punitive Damages Statute: Who’s Being
Punished, Anyway?, 74 N.C. L. R EV . 2174, 2190 (1996).
(2) The jury heard evidence that McDonald’s had
received approximately 700 other complaints about
coffee-burn injuries in the previous decade (some of
which were settled for a total outlay of over $500,000),
but considered the number of injuries statistically
insignificant 	and 	therefore 	did 	not 	lower 	the
temperature of its coffee. See Marc Galanter, An Oil
Strike in Hell: Contemporary Legends About the Civil
Justice 	System, 	40 	A RIZ . 	L. 	R EV . 	717, 	732 	(1998);
Greenlee, supra, at 719–22.
(3) The jury awarded $2.7 million in punitive damages
because it believed the extreme temperature of the
coffee 	was 	unreasonably 	dangerous 	and 	that
McDonald’s had callously disregarded the danger
11

BOYLE v. C HRISTENSEN
Opinion of the Court
even after hundreds of injuries. The $2.7 million figure
was based on the approximate revenues from just two
days 	of 	McDonald’s 	coffee 	sales. 	Shari 	Seidman
Diamond, Truth, Justice, and the Jury, 26 HARV . J.L. &
P UB . P OL ’ Y 143, 146–47 (2003).
¶22 	Given the uniquely iconic nature of this case, the passion
it has produced in the media, and the general misunderstanding of
the totality of its facts and reasoning among the public, we find it
hard to imagine a scenario where it would be proper for a party’s
counsel to refer to it before a jury. Generally, as here, such a
reference would seem to have the sole purpose of recalling the
public outrage over isolated elements of the case–-thus improperly
appealing to a jury’s passions. It is not the jury’s job to make legal
determinations, so no legal arguments from the case are relevant.
The facts in the McDonald’s coffee case were not in evidence before
this jury and were also utterly irrelevant. Indeed, the one attempt
counsel 	made 	to 	make 	her 	reference 	seem 	relevant 	was 	a
misrepresentation because the high punitive damages award in the
McDonald’s coffee case had nothing to do with a per diem analysis.
It is certainly unfair to require the other party to clarify all the
misconceptions about this irrelevant case in the limited time
allotted for closing argument. The great latitude provided in
closing arguments regards reasonable inferences about evidence
properly before the jury and does not extend to misrepresentations
or efforts to appeal to a jury’s passions. Thus the reference to the
McDonald’s coffee case in closing argument was improper.
B. Absent the Improper Reference to the McDonald’s Coffee Case,
There Was a Reasonable Likelihood of a More
Favorable Outcome for Mr. Boyle
¶23 	It is a difficult task to rewind the clock and determine
whether a jury verdict might have been different had some things
not been said. But we are not required to make that determination
in 	absolute 	terms. 	Instead, 	to 	determine 	whether 	reversal 	is
warranted, the test is whether “absent the improper argument,
there was a reasonable likelihood of an outcome more favorable to
the” complaining party. Dibello, 780 P.2d at 1225. Given the latitude
generally provided in closing argument, and the extreme nature of
12

Cite as: 2011 UT 20
Opinion of the Court
the remedy of granting a new trial, we will not reverse simply
because statements were improper. There must be a showing of a
“reasonable likelihood” that there was actual prejudice in the
outcome. We have defined the words “reasonable likelihood” as “‘a
probability sufficient to undermine confidence in the outcome.’”
State v. Knight, 734 P.2d 913, 920 (Utah 1987) (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)). It falls somewhere on a
spectrum between absolute certainty of influence on the verdict
and the mere possibility of such. See Brown v. Div. of Water Rights,
2010 UT 14, ¶ 20, 228 P.3d 747.
¶24 	Although the improper reference was likely made with
the intent to influence the jury, whether it had a reasonable
likelihood of actually doing so is the question at issue. Here, a
number of factors convince us there was a reasonable likelihood of
a better verdict for Mr. Boyle absent the improper reference to the
McDonald’s coffee case: (1) the iconic nature of the case that has
aroused such public passion, as described earlier in this opinion;
(2) the fact that the trial judge did not sustain the objection, thus
allowing 	the 	jury 	to 	believe 	it 	was 	proper 	to 	consider 	the
McDonald’s 	coffee 	case 	when 	deciding 	the 	verdict; 	(3) 	the
misrepresentation of the McDonald’s coffee case as a per diem
analysis that could have convinced the jury it was similar to the
case at hand when it was not; and (4) the size of the pain and
suffering damages awarded by the jury, which certainly could have
been the product of entirely rejecting a per diem analysis in
response to the McDonald’s coffee case comparison.
¶25 	We need not and do not decide whether any of these
factors alone would have been enough to overturn the verdict. But
each additional factor takes us further on the spectrum from mere
possibility toward greater probability that the statement had some
negative influence on the verdict for Mr. Boyle. Taken together,
these factors are sufficient to convince us that there was at least a
reasonable likelihood of a more favorable verdict for Mr. Boyle
absent the improper reference. The erroneous reference “might be
compared to a drop of ink placed in a vessel of milk. It cannot long
be seen, but it surely remains there to pollute its contents.” Pearce v.
Wistisen, 701 P.2d 489, 494 (Utah 1985). The court of appeals thus
should 	have 	found 	an 	abuse 	of 	discretion 	in 	allowing 	the
13

BOYLE v. C HRISTENSEN
Opinion of the Court
McDonald’s coffee case remarks. We therefore reverse the court of
appeals’ decision on this point and remand the case to the district
court for a new trial.
III. IT WAS ERROR TO DISMISS MRS. BOYLE’S
LOSS OF CONSORTIUM CLAIM
¶26 	Mrs. Boyle argues that the district court erred when it
dismissed her loss of consortium claim. The district court did so,
and 	the 	court 	of 	appeals 	affirmed, 	based 	on 	an 	erroneous
interpretation of the statute at issue.6 The relevant statute states that
“[t]he spouse of a person injured by a third party . . . may maintain
an action against the third party to recover for loss of consortium.”
U TAH C ODE A NN . § 30-2-11(2) (Supp. 2010). 7 The statute defines
such injury as
a significant permanent injury to a person that sub-
stantially changes that person’s lifestyle and includes
the following:
(i) 	a partial or complete paralysis of one or
more of the extremities;
(ii) 	significant disfigurement; or
(iii) 	incapability of the person of performing
the types of jobs the person performed
before the injury.
Id. § 30-2-11(1)(a).
¶27 	When interpreting a statute, we look first to its plain lan-
6 The court of appeals actually “express[ed] no opinion on
whether the parties are correct in their interpretation of section 30-2-
11(1)(a)” but accepted the parties’ erroneous interpretation for
purposes of the opinion. Boyle v. Christensen, 2009 UT App 241, ¶ 21
n.3, 219 P.3d 58.
7 Because there has been no substantive change that affects the
issues in this case, we refer to the current version of the statute.
14

Cite as: 2011 UT 20
Opinion of the Court
guage and “presume that the legislature used each word advisedly
and 	read 	each 	term 	according 	to 	its 	ordinary 	and 	accepted
meaning. . . . [I]f the plain meaning of the statute can be discerned
from its language, no other interpretive tools are needed.” State v.
Harker, 2010 UT 56, ¶ 12, 240 P.3d 780 (internal quotation marks
omitted). 	Here, 	the 	plain 	language 	defines 	an 	injury 	as 	“a
significant permanent injury to a person that substantially changes
that person’s lifestyle.” 	U TAH C ODE A NN . § 30-2-11(1)(a). The
parties interpreted the words “and includes” (which follow that
definition) to introduce an exhaustive list of examples. This was
incorrect. When “including” precedes a list, its common usage is to
indicate a partial list. See BLACK’ S LAW D ICTIONARY 777–78 (8th ed.
2004). Had the legislature wished to limit the definition of injury to
only the three listed scenarios, it could easily have stated “must
include” rather than “includes.” 	The structure of the statute also
supports this interpretation because the examples are listed as a
subset of the definition. If these were the only consortium claims to
be 	honored, 	the 	overlying 	definition 	would 	be 	superfluous.
Furthermore, the parties’ definition would, for example, likely
exclude a claim where impotence was at issue, thus providing no
remedy for loss of sexual relations between spouses—one of the
more common definitions of loss of consortium. See id. at 328. Had
this been the legislature’s intent, we believe it would have stated so
clearly. Because the statute does not say “must include,” we
interpret the list of examples as just that—examples that satisfy the
definition previously stated, but not an exclusive list. See Mouty v.
Sandy 	City 	Recorder, 	2005 	UT 	41, 	¶ 	39, 	122 	P.3d 	521 	(“The
legislature’s 	use 	of 	the 	word 	‘includes’ 	indicates 	that 	the
[subsequent] examples listed were not necessarily meant to be
exhaustive.”).
¶28 	The parties argued at length over whether changes in Mr.
Boyle’s abilities post-accident could constitute “incapacity” to do
the same “types of jobs” he could perform before the injury under
the statute. See U TAH C ODE A NN . § 30-2-11(1)(a)(iii). We do not
need to reach this question, 8 because, as explained above, while
8 We do note, however, that in interpreting this standard the
district court and court of appeals were too narrow in their
definitions of “incapacity” and “types of jobs.” We agree with the
15

BOYLE v. C HRISTENSEN
Opinion of the Court
meeting this standard would be sufficient to constitute an injury,
all that is required is that there was “a significant permanent injury
to a person that substantially changes that person’s lifestyle.” In
this case, opposing counsel conceded in a hearing before the district
court that there were facts in dispute regarding whether there was
such a significant injury to Mr. Boyle that it substantially changed
his lifestyle.9 That concession precluded dismissal. Both parties
were mistaken that there also needed to be issues of fact about at
least one of the three examples provided by the statute.
CONCLUSION
¶29 	We affirm the court of appeals’ decision that Mr. Boyle
failed to preserve for appeal the claim that voir dire questioning
was 	inadequate. 	However, 	we 	conclude 	that 	the 	improper
reference to the McDonald’s coffee case in Mr. Christensen’s
closing argument had a reasonable likelihood of prejudicing the
jury and producing a less favorable outcome for Mr. Boyle. We
therefore reverse and remand for a new trial. On remand, Mrs.
Boyle’s claim for loss of consortium should be reinstated because
there are issues of fact in dispute regarding whether there was an
analysis of Spahr v. Ferber Resorts, LLC, that “[r]ather than being
literally and completely incapable of doing a job even in a most
limited and extraordinary way, then, being unable to engage in an
essential part of a job in a routine manner must suffice to make one
incapable of performing that job under the statute.” 686 F. Supp. 2d
1214, 1220 (D. Utah 2010). The fact that Mr. Boyle works in the same
type of industry as before the injury would not necessarily mean he
has the same type of job. Inability to work the same hours or
perform some of the same tasks he could perform before may, in
certain circumstances, constitute an injury under the statute. Where
the facts regarding present and previous jobs are not disputed, there
may still be reasonable inferences in dispute (derived from the
undisputed facts) that must be left to the jury.
9 Counsel for Mr. Christensen acknowledged that there must “be
a significant permanent injury that substantially changed the
plaintiff’s life, Mr. Boyle’s life. That I would [agree] is in dispute in
this case so there are issues of fact on that. However, taking that
aside, the other criteria that must be met . . . .”
16

Cite as: 2011 UT 20
Opinion of the Court
injury under the relevant consortium statute.
____________
¶30 	Associate Chief Justice Durrant, Justice Parrish, Justice
Nehring, and Justice Lee concur in Chief Justice Durham’s opinion.
17